Minnesota Law Gives Employees Right To Hearing On Challenges To Evaluations

Minnesota has a statute known as the Government Data Practices Act. The Act allows an individual who is the “subject of government data” to contest the accuracy or completeness of the data. The Act allows an initial challenge to be filed with the governmental body possessing the data. If the individual is dissatisfied with the response, the challenge can be appealed to an administrative law judge with the Minnesota Department of Administration.

Todd Schwanke is a sergeant with the Steele County Sheriff’s Office. On February 1, 2012, Schwanke received a generally negative review of his performance for calendar year 2011. The evaluation rated Schwanke in 15 of 23 possible categories. Schwanke was rated as “below standards” in seven categories, “meets standards” in five categories, “above standards” in two categories, and “exceeds standards” in one category. Each rating was supported by comments referring to specific incidents, performance data, or patterns of behavior.

Schwanke submitted a challenge to the accuracy or completeness of the evaluation to the Sheriff, who rejected the challenge. Schwanke appealed the Sheriff’s determination to the Department of Administration and requested a hearing. The Department refused to accept Schwanke’s appeal, taking the position a data challenge was “not the proper venue to challenge a government entity’s policies and procedures.” The Department further stated that it was improper for Schwanke “to challenge the thoughts, impressions, perceptions, observations, and/or opinions made by a supervisor contained in a performance evaluation.” The Department concluded that Schwanke should consult his employment contract and collective bargaining agreement for policies concerning challenging a performance evaluation.

The Minnesota Court of Appeals overturned the Department’s rejection of Schwanke’s appeal. The Court found that the Act “vests final agency authority to determine the accuracy and completeness of government data in the Commissioner of Administration. This authority extends to public data on individuals and private data on individuals. ‘Public data on individuals’ means data that are accessible to the public. ‘Private data on individuals’ are not accessible to the public, but are accessible to the individual subject of the data. ‘Data on individuals’ is defined as all government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.

“Steele County is a government entity. Personnel data maintained because an individual is an employee of a government entity constitute government data on individuals. The employee evaluation created by officers of Steele County is data created and maintained by a government entity. As an individual identified as the subject of that data, Schwanke may contest the accuracy and completeness of his evaluation under the Act.

“The Department of Administration argues that a performance evaluation is entirely subjective, representing the opinion of a supervisor, and therefore its accuracy may not be contested. This argument has some merit, but this is ultimately a factual question to be determined on a case-by-case basis by the ALJ, and we refuse to adopt a per se rule that a performance evaluation is inherently subjective and therefore not subject to a data challenge, especially given the plain language of the Act stating that a government employee may contest the accuracy or completeness of public or private data.”

Schwanke v. Minnesota Department of Administration, 834 N.W.2d 588 (Minn. App. 2013).